Confiance legitime.

• Author: Jutras, Daniel
• Position: Special Section: McGill Companion to Law

Life is filled with disappointed expectations. In the maelstrom of human interactions, we make all sorts of assumptions about the state of affairs, the ways in which others will behave, the recurrence of stable practices, the veracity of what appears to be real. We adjust our own behaviour on the basis of these assumptions. Often these assumptions prove to be wrong, and relying on them turns out to be detrimental. Does the law care? Should it care?

As a legal idea, detrimental reliance sits uneasily between two destinies. In one story, it becomes the foundational principle for all of the law of obligations, explaining and justifying the enforcement of contracts and the reparation of wrongful harm. In the opposing story, it disintegrates--and disappears--into a multiplicity of discrete legal doctrines, each with its own peculiar conditions and effects. Neither story is compelling. Detrimental reliance is at its normative best when it can be imagined as a distinct and cohesive set of private law rules giving effect to a basic intuition: reasonable assumptions can be relied upon and should produce effects in law, under the right circumstances. But this intuition is not sufficiently precise to be operational. More needs to be said to avoid the perils of equivocation.

Beginning with Lon Fuller's socio-legal idea of "stable interactional expectancies," there are a number of well-known efforts to establish detrimental reliance as a general principle, if not the foundational principle of the law of obligations itself. Xavier Dieux in Belgium, citing Jean Carbonnier in France, himself citing Gino Gorla in Italy, stated that the legal (and moral) basis of contractual obligation is not the promise of the debtor, but the reasonable reliance of the creditor, who puts his faith in the words of the promisor, changes his position, and thereby exposes himself to loss when the promise fails. Yet one cannot escape the sense that these authors were looking at two sides of the same coin. In the context of reciprocal agreements, promise and reliance are not severable. Similarly, in the Anglo-American world, the battle raged for a couple of decades at the end of the twentieth century, between the contract-as-promise believers and their contract-as-reliance detractors. But of course, reliance and promise never fully merge as the basis for contractual obligation. In all jurisdictions, a contractual promise is valid and enforceable as such, whether or not it has...